Citation Nr: 1801062 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-18 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for hemorrhoids. 2. Entitlement to an initial compensable rating for a left brow scar. 3. Entitlement to an initial rating in excess of 10 percent for a lumbar strain with spondylosis and associated bilateral radiculopathy. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Ciardiello, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from August 1993 to April 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction of the Appeal has since transferred to the RO in Cleveland, Ohio. The Veteran testified before the undersigned Veterans Law Judge in a hearing in April 2017. The issue of entitlement to a higher initial rating for a lumbar spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's hemorrhoids had their onset in service. 2. The Veteran's left brow scar is painful. 3. The Veteran's service-connected lumbar spine disability is manifested by at least mild neurological abnormalities of the left and right lower extremities. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for hemorrhoids have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for a 10 percent initial rating for a scar on the left brow have been met. 38 U.S.C. §§ 1155, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.118, DC 7800, 7804 (2017). 3. The criteria for the assignment of a separate 10 percent rating for radiculopathy of the left lower extremity associated with the Veteran's lumbar spine disability have been met. U.S.C. §§ 1155, 5103A (2012); 38 C.F.R. § 4.124a, diagnostic code 8520 (2017). 4. The criteria for the assignment of a separate 10 percent rating for radiculopathy of the right lower extremity associated with the Veteran's lumbar spine disability have been met. U.S.C. §§ 1155, 5103A (2012); 38 C.F.R. § 4.124a, diagnostic code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection for Hemorrhoids Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Veteran has a current diagnosis of hemorrhoids. See August 2010 VA Examination. Additionally, the Veteran has competently and credibly testified that he had hemorrhoids during service. See April 2017 Hearing Transcript at 15; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As the first two elements of service connection have been met, the crux of this issue relies on establishing a nexus between the Veteran's current hemorrhoids, and his in-service occurrence of hemorrhoids. The Board finds that the evidence, including the Veteran's competent and credible testimony shows that the Veteran's hemorrhoids initially began during service and has been recurrent since. See April 2017 Hearing Transcript at 15. As such service connection is warranted. See 38 C.F.R. § 3.303(a). II. Higher Initial Rating for a Left Brow Scar The Veteran's left brow scar is currently assigned a noncompensable rating under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7800. He seeks a compensable rating, asserting that he has painful scarring. Scars are rated under 38 C.F.R. § 4.118, DCs 7800-7804. Under DC 7804, a 10 percent rating is warranted where there are one or two scars that are unstable or painful. See 38 C.F.R. § 4.118, DC 7804. The Board finds that a rating of 10 percent is warranted under DC 7804 for a painful scar. At the April 2017 hearing, the Veteran testified that his service-connected left brow scar is painful, especially in cold weather. See April 2017 Hearing Transcript at 12. The Veteran is competent to report on the symptoms he experiences, and the Board finds his testimony credible. See Layno v. Brown, 6 Vet. App. 465 (1994). As the Veteran testified that the grant of a 10 percent rating for his service-connected scar would satisfy his appeal, the Board need not address whether higher ratings are warranted. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also April 2017 Hearing Transcript at 14. The Board finds that the record does not raise a claim for a total rating based on individual unemployability (TDIU) because at the April 2017 hearing the Veteran confirmed that he is not claiming TDIU. See April 2017 Hearing Transcript at 3. III. Higher Initial Rating for a Lumbar Spine Disability The Veteran seeks a rating in excess of 10 percent for his service-connected lumbar strain with spondylosis and associated bilateral radiculopathy. The Veteran is currently rated under DC 5237 based on limitation of motion. The Board finds that separate ratings of 10 percent each are warranted for associated left and right lower extremity radiculopathy. See Esteban v. Brown, 6 Vet. App. 259 (1994). Diagnostic Code 8520 of 38 C.F.R. § 4.124a provides that mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis with marked muscular atrophy is rated 60 percent disabling. During the April 2017 hearing, the Veteran competently and credibly testified that he experiences bilateral lower extremity radiculopathy pain stemming from his lumbar spine disability. See April 2017 Hearing Transcript at 9. The court in Miller established that a Veteran is entitled to a rating of up to 20 percent for radiculopathy that is wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376, 380 (2017). The Veteran has not been provided the proper testing to establish the complete extent of his bilateral lower extremity radiculopathy, but the Board finds that the Veteran is entitled to at least a 10 percent rating for each lower extremity based on his competent and credible lay testimony that he has sensory symptomatology in his legs. The Board classifies this as mild. As such, resolving all reasonable doubt in his favor, the Board finds that the Veteran is entitled to at least a 10 percent rating for radiculopathy of the right lower extremity and at least a 10 percent rating for radiculopathy of the left lower extremity for the entire period on appeal. The issues of entitlement to a higher initial rating under DC 5237, and higher ratings for left and right lower extremity radiculopathy under DC 8520 are addressed in the remand portion of this decision. ORDER Service connection for hemorrhoids is granted. An initial rating of 10 percent is warranted for a scar of the left brow. Effective April 11, 2010, a separate evaluation of 10 percent for radiculopathy of the right lower extremity is granted, subject to the rules and regulations governing the payment of VA monetary benefits. Effective April 11, 2010, a separate evaluation of 10 percent for radiculopathy of the left lower extremity is granted, subject to the rules and regulations governing the payment of VA monetary benefits. REMAND The Board finds that remand is necessary to provide the Veteran with a VA examination to determine the severity of his lumbar spine disability, including associated bilateral radiculopathy, as the Veteran has indicated that his condition has worsened since his last examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran was last afforded a VA examination in relation to his lumbar spine in September 2011. Subsequently, the court in Correia v. McDonald, 28 Vet. App. 158 (2016), that held that the final sentence of § 4.59 specifies that VA joint examinations must test for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint. However, it does not appear that such testing was accomplished. Therefore, the Board must find that this examination is not in accord with the remand directives and the requirements of Correia. As such, the September 2011 VA examination is not adequate for resolution of this appeal. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the Board must remand this case for an examination that does adequately evaluate the Veteran's service-connected lumbar spine disability. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). In addition, recently, the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressed the adequacy of a VA examiner's opinion concerning additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why [he or] she c[an] not do so." Thus, in light of the Court's determination in Sharp, the Board finds that this matter must be remanded for a new VA examination and opinion addressing the issue of limitation of motion during flare-ups. Accordingly, the case is REMANDED for the following action: 1. Obtain any missing VA treatment records and associate them with the claims file. 2. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his lumbar spine disability that are not already of record. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge of his lumbar spine disability. He should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, the Veteran should be afforded a new examination to evaluate the current nature and severity of his service-connected lumbar spine disability with associated bilateral lower extremity radiculopathy. The claims folder should be made available to the examiner for review before the examination. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should also offer an estimate as to additional functional loss during flares regardless of whether the Veteran is undergoing a flare-up at the time of the examination. Further, in accord with the requirements of 38 C.F.R. § 4.59, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint; or an explanation from the examiner that any such testing cannot or should not be conducted. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his lumbar spine symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. 4. Readjudicate the claim on appeal, undertaking any additional development deemed necessary. If any of the benefits sought on appeal remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and return the matter to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs